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Petitioner: SAIFULLAH and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Rashid Aziz Khan, Muhammad Nawaz Abbasi Title: SAIFULLAH and others vs THE STATE Case No.: Cr1. Appeal No, 1003 of 1988 Date of Judgment:1993-04-24 Reported As: 1993 P Cr. L J 1616 Result: Order accordingly
JUDGMENT
JUDGMENT ' MUHAMMAD NAWAZ ABBASI, J.--- Saifullah aged 20 years son of Dost Muhammad, Muhammad Hussain aged 45 years, Muhammad Bashir aged 40 years and Abdullah aged 55 years, sons of Soina, Muhammad Asghar aged 20 years son of Abdullah, Muhammad Arshad aged 23 years son of Mulaim, Muhammad Inayat aged 40 years son of Saleh Muhammad and Mulaim aged 75 years son of Massan appellants alongwith Bashir Ahmed, Muhammad Sharif sons of Sohna and Asadullah son of Bashir Ahmad were tried under section 148/302/307/149, P.P.C. For the murders of Mian Khan, Nausher and Mst. Khani Bibi deceased by the learned Special Judge, Punjab Special Court for Speedy Trials No,V, Multan who vide judgment, dated 11-4-1988 convicted and sentenced the appellants under section 148, P.P.C. To three years' R.I. Each and a fine of Rs,2,000 each or in default thereof to undergo further R.I. For three months each. They were convicted under section 302/149, P.P.C. And awarded death penalty each on three counts except, Mulaim appellant with a fine of Rs,10,000 each on each count or in default of payment of fine to further suffer R.I. For two years on each count. Mulaim appellant was sentenced to imprisonment for life with a fine of Rs,10,000 each on each count or in default thereof to further R.I. For two years on each count. ' His sentence was ordered to run concurrently. The appellants were given the benefit of section 382-B, Cr.P.C. The appellants were also directed to pay compensation of Rs,50,000 each to the heirs of the three deceased or in default thereof to undergo six months' R.I. Each. However, Bashir Ahmad, Muhammad Sharif and Asadullah were acquitted by giving them the benefit of doubt. ' The appellants by way of this appeal have challenged their conviction and sentence whereas Muhammad Khan has filed Criminal Revision No,205 of 1990 questioning the acquittal of Bashir
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Ahmad, Muhammad Sharif and Asadullah. This judgment shall dispose of both appeal as well as the Criminal Revision. 2. The prosecution case as narrated in the complaint Exh.P.F. Lodged by Muhammad Amir is that on 9-12-1986 Muhammad Amir first informant alongwith three deceased namely Mian Khan and Nausher, his sons and Mst. Khani Bibi, wife of Mian Khan early in the morning left for Railway Station Noor Shah as the deceased had to go to Mailsi through train. However, Amir complainant instead of going with the deceased stayed at his tube-well in the way whereas the deceased proceeded to Noor Shah Railway Station. After some time Muhammad Hanif son of Isa informed the complainant at his tube-well that at about 9-00 a.m. When Mian Khan, Nausher and Mst. Khani Bibi deceased were sitting at the platform of Noor Shah Railway Station, Saifullah, Muhammad Hussain, Asghar, Arshad and Inayat armed with guns, Bashir armed with carbine, Asadullah and Abdullah armed with revolver, Mulaim and Bashir son of Sohna with plastic coopies in their hands and Sharif 'son of Sohna empty-handed appeared at the platform. Muhammad Sharif and Saifullah raised Lalkara not to spare the deceased whereupon Saifullah, Muhammad Hussain and Bashir fired at Mian Khan causing injuries on different parts of his body. Mian Khan in an injured condition ran inside the office of Station Master and the three accused chasing him fired as a result of which glasses of the door of office were broken. Mian Khan 'died at the spot. Asadullah, Arshad and Inayat accused fired at Nausher causing injuries on different parts of his body who fell in the waiting room. Mulaim and Bashir son of Sohna sprinkled petrol on him and Muhammad Sharif lit a match to burn the deceased who died at the spot. Abdullah and Asghar accused fired at Mst. Khani Bibi causing injuries on different parts of her body and she also died. One Nasarullah son of Pir Bakhsh present at the railway station was also injured during the occurrence. This fateful occurrence was witnessed by Nasarullah, Ahmad Ali, Jahan Khan, Shafi alongwith Naveed Ahmad Bhatti. 3. The motive as disclosed is that about two years before the occurrence Dost Muhammad father of Saifullah appellant was murdered and complainant alongwith his deceased son, namely Mian Khan and Nausher were tried as. Accused but were subsequently acquitted. Saifullah etc. Accused- having grudge caused the death of three deceased. Complaint Exh.P.F. Lodged by Muhammad Amir was recorded by Muhammad Naeem A.S.I. P.W.23 at 1-00 p.m. At Railway Station Noor Shah and on the basis of which formal F.I.R. Exh.P.F./1 was recorded by Muhammad Ashraf, Head Constable P.W.3 at 6-00 p.m. With Railway Police Station, Samasatta. 4. After recording the complaint Muhammad Naeem A.S.I. P.W.23 prepared the injuries statement Exh.P.KK. And inquest report Exh.P.LL. Of Mian Khan deceased, injuries statement Exh.P.MM. And inquest - report Exh.P.NN. Of Nausher deceased and injuries statement Exh.P.00. And inquest report Exh.P.QQ. Of Mst. Khani Bibi deceased. He despatched all the three dead bodies to Civil Hospital, Mailsi, for post-mortem examination. During the spot inspection he took into possession blood- stained earth from three places of murder of three deceased through separate memos. Exhs.P.Q., P.R. And P.S. He took into possession 18 crime empties of .12 bore gun P.18/1-18 and 7 crime empties of .32 bore P.19/1-7 from the platform vide memo.Exh.P.T. He secured six pellets Exh.P.20/1-6 of 7.65 mm and two pellets Exh.P.22/1-2 of .32 bore from the floor of office of Station Master. He secured 6 pellets Exh.P.21/1-6 from inside waiting hall and two .12 bore pellets Exh.P.23/1-6 from the platform and took all these into possession vide memo. Exh.P.U. He found fireshot on window-panes and register hanging on the wall of office of the Station Master. He took into possession broken pieces of window panes and glasses vide recovery memo. Exh.P.V. He also secured the register Exh.P.25 having marks of pellets vide memo. Exh.P.W. 5. Dr. Riaz Hussain Khan P.W.1 conducted post-mortem examination on the dead body of Mian Khan deceased on 10-12-1986 at 8-00 a.m. And found the following injuries thereon:-- (1) Eight pellet lacerated wounds on the front of middle of lower part of chest, oval shape 1-1/4 c.m. x 1 c.m. Deep into the chest.
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(2) A lacerated fire-arm wound 9 c.m. x 6 c.m. x 10 c.m. On the back of right buttock upper part directed to the front and upwards. There was fracture of neck of right femer and right iliac bone. The edges of the wound were burnt and back unburnt powder was found in the wound. (3) A lacerated fire-arm wound 8 c.m. x 6 c.m. x 4 c.m. On the middle of right buttock. The injury was superficial and edges of the wound were burnt. (4) A lacerated fire-arm wound 6 c.m. x 4 c.m. On the outer side of right buttock deep to the bone. The direction was upwards and inwards. The edges of the wound were burnt. (5) A lacerated fire-arm wound 4 c.m. x 3 c.m. x 11 c.m. On the back and lower part of left buttock, directed to the front and upward. The edges of the wound were burnt. ' In his opinion cause of death was shock and haemorrhage due to fire. Arms injuries Nos.1 to 5. Injury No,1 was alone sufficient to cause death in the ordinary course of nature. ' On the same day at 9-30 he conducted the post-mortem examination on the dead body of Nausher and found the following injuries thereon:-- (1) A lacerated fire-arm wound 1-1/2 c.m. x 1 c.m. On the left of head passing deep into brain. It was oval shaped and its edges were inverted and burnt. (2) A lacerated fire-arm wound 1-1/4 c.m. x 1 c.m. Oval shaped on the upper part of chest near midline. The wound was going deep into the chest. (3) A lacerated fire-arm wound 4 c.m. x 3 c.m. x through and through the right shoulder with a lacerated wound 2 c.m. x 1 c.m. On the back of shoulder. There was fracture of head of right humerus. (4) A lacerated fire-arm wound 1-1/2 c.m. x 1 c.m. x 3 c.m. On the back and lower part of right shoulder with oval shape. ' In his opinion death was caused due to shock and haemorrhage as a result of injuries on the head and chest. Injuries Nos.1 and 2 individually were sufficient to cause death in the ordinary course of nature. ' On the same day at 11-00 a.m. He peformed post-mortem examination on the dead body of Mst. Khani Bibi deceased and found the following injuries on her person:-- (1) A lacerated fire-arm wound 9 c.m. x 4 c.m. x through and through the left of face, and fracture of the mandible on left side. (2) A lacerated fire-arm wound 4 c.m. x 2 c.m. In shape, on the outer side of chest with 6 lacerated wounds 1-1/4 c.m. x 1 c.m. Each around it. The edges of the wound were inverted. The exit wound of this injury was on the right of back as a lacerated wound 5 c.m. x 3 c.m. In the middle and 6 lacerated wounds each 1-1/2 c.m. x 1-1/2 c.m. The edges were everted. (3) A bruise 7 c.m. x 3 c.m. On the right of scalp. It was 9 c.m. Away from right ear. ' In his opinion cause of death was shock and haemorrhage due to injury on the chest and face. Injuries Nos.1 to 3 were sufficient to cause death in the ordinary course of nature. 6. The investigation was taken over by Muhammad Rafique S.I. P.W.24 on his arrival at the spot at midnight. He took into possession last worn clothes of all the three deceased and got Nasrullah P.W. Medically examined by the doctor who found four fire-arm injuries on his person which were simple in nature and were caused within the duration of about 28 houRs, On 9-12-1986 he secured station diary P.26 and took the same into possession through memo. Exh.P.Y. ' Muhammad Rafiq S.I. P.W.24 arrested Muhammad Hussain, Bashir son of Sohna, Arshad, Asghar, Sharif and Mulaim on 14-12-1986 from the Dera of Muhammad Hussain appellant. On 17-12-1986 Muhammad Arshad led to the recovery of double-barrel gun P.30 with seven live cartridges P.31/17 from the Jisti Petty lying in the residential room of Saifullah appellant which was taken into possession vide memo. Exh.P.BB. Muhammad Bashir accused led to the recovery of carbine P.32 with three cartridges P.33/1-3 from the Jisti Petty lying inside the residential room which was taken into possession through memo. Exh.P.CC. Asghar appellant got recovered .32 bore pistol P.34 with
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seven cartridges P.35/1-7 from the box lying in the Kotha of his paternal-grandmother which was taken into possession vide memo. Exh.P.DD. Muhammad Hussain appellant led to the recovery of gun P.36 with five cartridges P.37/1-5 lying in the heap of cotton inside his residential house which was taken into possession vide memo. Exh.P.EE. On 21-12-1986 Muhammad Asghar appellant led to the recovery of gun P.39 from the bushes near Railway Station Noor Shah which was taken into possession vide memo. Exh.P.GG. Abdullah accused led to the recovery of revolver P.40 from underneath the ground near. Railway. Station which was taken into possession through memo. Exh.P.HH. Mulaim appellant led to the recovery of Kuppi P.38 from the straw of rice lying in the Kotha of Muhammad Hussain which was taken into possession vide memo. Exh.P.FF. 8. On 23-12-1986 Saifullah appellant was arrested by Muhammad Rafiq S.I. P.W.24 and on 25-12- 1986 he led to the recovery of gun P.29 from inside the residential room situated in the Ihata of Muhammad Hussain and Bashir appellants. The gun was taken into possession through memo. Exh.P.AA. 9. On 18-12-1986 Muhammad Naeem, A.S.I. P.W.23 arrested Inayat and Abdullah appellants and on 22-12-1986 Inayat led the police party headed by Muhammad Naeem P.W.23 to the Dera of Muhammad Hussain appellant and got recovered his licensed gun P.27 alongwith licence P28 which were taken into possession through memo. Exh.P.Z. Asadullah accused was arrested by Muhammad Rafiq S.I. P.W.24 on 27-12-1986 and Bashir son of Sohna accused was arrested on 6-1- 1987 by Noor Khan S.I. P.W.22. Bashir accused led to the recovery of Kuppi P.41 which was taken into possession by Noor Khan S.I. P.W.22 vide memo. Exh.P.JJ. Sealed parcels of blood-stained earth and the crime empties were sent to Forensic Science Laboratory on 30-12-1986 and the sealed parcels of weapons of offence were sent to the laboratory on 25-1-1987. 10. After completion of investigation the challan was submitted against the appellants and the acquitted accused. 11. The prosecution in support of its case examined as many as 26 witnesses. The medical evidence was furnished by Dr. Riaz Hussain P.W.1 and Dr. Muhammad Riaz P.W.2. P.W.3 Muhammad Ashraf Moharrir/H.C. Kept sealed parcels intact in his custody. P.W.4 prepared the site plan; P.W.5 delivered the three parcels to the office of Chemical Examiner intact, P.W.6 received the parcels of crime empties on 30-12-1986 and delivered them on 1-1-1987 in the office of Director, Forensic Science Laboratory; P.W.7 took the photographs of the place of occurrence. P.W.8 Sardar Khan, Constable escorted the dead bodies of Mian Khan, Nausher and Mst. Khani Bibi deceased from the Railway Station Noor Shah to Civil. Hospital Mailsi for postmortem examination. Rafique Ahmed Kazim, Station Master P.W.9 witnessed the recoveries of different articles from the spot. Nasarullah Afridi P.W.10 is Assistant Station Master who made entries in Register No,26 Exh.P.Y. Muhammad Hanif P.W.16, Ahmad Ali P.W.17, Jahan Khan P.W.18 and Naveed Ahmed P.W.19 furnished ocular account of occurrence. Noor Khan P.W.22, Muhammad Rafique P.W.24 and Abdullah Khan P.W.25 are the Investigating Officers of the case. Muhammad Ameer complainant died before commencement of the trial and Muhammad Azeem P.W.21 proved his death. The Chemical Examiner's report Exh.P.UU and that of Serologist Exh.P.VV. Were also placed on record. Dr. Muhammad Arif Saeed who medically examined Saif Ullah, appellant on 9-12-1986 was examined as C.W.1. The bullet P.1 recovered from the head of Nausher deceased was sent to Fire-arm Expert alongwith pistol P.34 for comparison by the learned Special Court after preparing the sealed parcel. Report of the Fire-arm Expert is Exh.C.W.2/A. Muhammad Abdullah who took the parcel and brought the report was examined as C.W.2. 12. The appellants admitted their relations inter se. However, it was denied that Bashir son of Sohna, Sharif and Asadullah son of Sharif have any connection with the other appellants. They admitted that in the murder case of Dost Muhammad father of Saifullah, two deceased were convicted but ultimately were acquitted by the High Court. The appellants denying the allegations pleaded false
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implication due to. Enmity. Bashir accused pleaded that he was a prosecution witness in that murder case of Dost Muhammad against Mian Khan and Nausher deceased and therefore, he had been falsely implicated. Abdullah accused pleaded that he being son of Bashir accused has been named as an accused in the case. He taking plea ,of alibi stated that he was a school teacher and on the day of occurrence was present in his school from 8-45 a.m. To 3-00 p.m. The appellants except Abdullah and Saifullah did not produce any defence evidence or appear in the witness-box in their own defence. Saifullah appellant examined Ijaz Ahmad D.W.1, Amjad Ali D.W.2 and Muhammad Iqbal D.W.4. Supplementary statements of Muhammad Hussain, Saifullah, Arshad, Asghar, Abdullah and Inayat appellants were recorded. 13. Learned counsel for the appellants raised the following contentions:-- (i) That the crime empties recovered from the place of occurrence did not find mention in the document Exh.P.H. Prepared by Muhammad Naeem P.W.23 at Railway Station Noor Shah before registration of case which document bears all other details except the crime empties. (ii) That no place of crime empties was shown in the site plan Exh.P.G. Prepared by P.W.4 for want of pointation of such place by the P.Ws. (iii) That the crime empties and the blood-stained earth were recovered on the day of occurrence but were sent to the office of Chemical Examiner on 13-12-1986. The weapons of offence were recovered from the appellants during the period from 17-12-1986 to 25-12-1986 but according to P.W.3 the same were sent to the Forensic Science Laboratory on 14-1-1987 whereas all these parcels were received by the concerned office on 26-1-1987. (iv) That according to the prosecution Asadullah acquitted accused caused injuries to Nausher deceased but revolver alleged to have been used by him was recovered from Abdullah. Muhammad Asghar appellant got recovered two types of weapons of offence i,e. Gun P.39 on 21- 12-1986 and pistol .32 bore P.34 on 17-12-1986. The crime empties C.12 matched with the gun whereas empties C.20 to 25 matched with pistol P.34. According to the story in the F.I.R. He used only gun but the recovery of pistol from him changed the whole reflection of the prosecution case. Revolver P.40 recovered from Abdullah does not match with any empty. (v) Saifullah appellant and one Nasrullah P.W. Were injured during the occurrence which circumstance shows that the occurrence did not take place in the manner as disclosed by the prosecution and the possibility of cross-firing cannot be ruled out in the circumstances. (vi) That the occurrence took place at 9-00 a.m. But none of the P.Ws., claiming their presence at the spot took any step to inform the police till the arrival of Muhammad Naeem P.W.23 who after completing the preliminary investigation recorded the statement of the' complainant and thereafter the case was registered. (vii) That the detail of the injuries is not mentioned in the statement of the P.Ws. Under section 161, Cr.P.C. Which fact excludes their presence at the spot at the relevant time and that the going of Muhammad Hanif P.W.16 to intimate the complainant about the occurrence instead of reporting the matter to the police makes his presence at the spot doubtful. His name is not mentioned as eye-witness in the statement of other P.Ws. Under section 161, Cr.P.C. (viii)That Nasrullah, the injured P.W. Was intentionally not produced on false pretext to avoid disclosure of actual story. Nasrullah Khan Afridi P.W.10, Assistant Station Master being natural witness of the occurrence did not report the matter to the police for want of necessary particulars of the deceased. (ix) That the injuries on the persons of deceased coupled with other circumstances indicate that a wider net has been spread over to involve maximum number of persons which is evident from the fact that Arshad, Mulaim, Asghar, Abdullah and Inayat appellants belonged to Gujranwala whereas the remaining to District Vehari but all were named as accused together in the occurrence.
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(x) That the P.Ws. Are related inter se with the deceased and are inimical towards the appellants, the presence of P.Ws. At the platform being highly doubtful and their evidence not confidence inspiring cannot be relied upon for the purpose of conviction. 14. Learned counsel for the State contends that the P.Ws. Are natural witnesses of the occurrence. Since two sons and one daughter-in-law of the complainant were murdered, therefore, it was quite natural for Muhammad Hanif to rush to inform the complainant. He next contends that there are sufficient corroboratory evidence in the nature of recovery of weapons of offence, crime empties, motive and medical, therefore, the prosecution has proved the case against the appellants beyond all reasonable doubts. 15. We have heard the arguments of the learned counsel for the appellants as well as the State and learned counsel for the complainant and perused the record. 15-A Admittedly Mian Khan and Nausher deceased with their father Muhammad Ameer complainant were accused in murder case of Dost Muhammad, father of Saifullah appellant who were convicted by the trial Court but ultimately were acquitted by the High Court. All the appellants are closely related inter se. Muhammad Hussain, Muhammad Bashir and Abdullah appellants are real brotheRs, Saifullah is their nephew. Asghar appellant is son of Abdullah and Irshad is son of Mulaim appellant brother-in-law of Muhammad Hussain. Inayat, is son-in-law of Mulaim, therefore, they being aggrieved of the murder of Dost Muhammad, father of Saifullah appellant had a strong motive for launching attack on the deceased. 15-B The ocular account in the present case was furnished by Hanif P.W.16, Ahmad Ali P.W.17, Jhan Khan P.W.18 and Naveed Ahmad P.W.19. It is correct that the name of Muhammad Hanif P.W. Does not appear in the, statement of remaining eye-witnesses under section 161, Cr.P.C. But keeping in view the whole situation the doubt, if any, about his presence at the spot is removed. He immediately after the occurrence proceeded to inform Muhammad Ameer complainant about the incident and thereafter again came to the place of occurrence with him. Muhammad Naeem P.W.23 recorded the statement of the P.Ws. At the spot after recording the statements of Muhammad Amir complainant and Muhammad Hanif P.W.16 had accompanied Muhammad Amir to the spot. P.W.23 admitted his omission of not mentioning the name of Muhammad Hanif in the statements of other witnesses. It appears that it was only an omission as stated otherwise the complaint Exh.P.F. Is reproduction of the information supplied by P.W.16 to the complainant at his tube-well and the contents of the complaint are fully corroborated by the evidence of eye- witnesses including Muhammad Hanif and also P.W.23 Muhammad Naeem A.S.I. Who recorded the statement of Muhammad Amir complainant. If Muhammad Hanif was not present at the spot, then instead of cooking a fake story of his going to the tube-well of Muhammad Amir and again back with him at the spot, Muhammad Amir could be shown to be present at the spot at relevant time. We are therefore, of the view that the presence of Muhammad Hanif P.W.16 at the spot at the time of occurrence cannot be doubted. 16. There is also no circumstance to indicate and suggest the nonappearance of the remaining eye-witnesses at the spot. They have given a sufficient explanation of their presence at the Railway Station at particular time. The railway station is a public place and presence of prosecution witnesses at railway station cannot be objected to be unnatural. The contention that none of the P.Ws. Has reported the matter to the police does not carry any weight for more than one reason. The occurrence took place at the platform falling within the jurisdiction of railway police and that there being no police station at Noor Shah Railway Station the case was to be registered with Railway Police Station Sama Satta at a distance of 30 miles but in the meantime, Muhammad Naeem P.W.23, A.S.I. Of Railway Police reached Noor Shah by chance who recorded the statement of Muhammad Ameer complainant. Therefore, the P.Ws. Were not in a position to lodge the report immediately after the occurrence. The other reason was that Muhammad Hanif P.W. Had
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proceeded to inform Muhammad Ameer complainant, therefore, the remaining P.Ws. Kept waiting for the arrival of Muhammad Ameer complainant and did not proceed for Sama Satta to lodge report of their own. In this situation the presence of the P.Ws. Cannot be excluded for the reason that the report was not lodged by them. 17. The factum of running of Mian Khan deceased to the office of Station Master and Nausher deceased to the waiting room from which places broken glasses were taken into possession, is evident from the statement of Nasrullah Afridi, Assistant Station Master P.W.10. The running of deceased after receiving the injuries to look for shelter was natural and the statement of Nasrullah Afridi, Assistant Station Master provides corroboration to the eyewitnesses establishing their presence at the spot. 18. The preparation of document Exh.P.Y./1 extract of the register prepared by Nasrullah P.W.10 at 9- 50 a.m. Was for the purpose of Railway Record itself. He simply narrated about the incident which had taken place at the Railway Station and was not supposed to give each detail. Anyhow he was neither known to the parties nor has any idea about their particulars, therefore, the giving of names and other necessary details as such with regard to injuries and recovery of crime empties were not required to be given in the extract of register which was only for railway purpose. However, the report of fateful incident in the said register in the present form is in the natural sequence, therefore, the arguments of the learned counsel for the appellants that this document first prepared in time not containing the detail is fatal to prosecution being without any foundation are not entertainable. 19. The contention regarding non-production of Nasrullah and injured P.W. Has no force and not to be given…
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